Mr. Chief Justice Thompson
delivered the opinion of the court:
Roscoe Stevens, (hereinafter called plaintiff,) by Dollie Stevens, his mother and next friend, brought his action in the circuit court of Marion county against the Illinois Central Railroad Company to recover damages for personal injuries received in a collision between an automobile truck driven by him and a passenger train operated by the servants of defendant at a public crossing near the village of Odin, June 29, 1920. Plaintiff recovered a judgment for $1900, and this judgment was affirmed on appeal to the Appellate Court for the Fourth District. The cause is here by certiorari.
The trial was had upon the declaration filed by plaintiff, which set out in its four counts various grounds for recovery, and special pleas filed by defendant, averring that defendant was doing a general railroad business at the time of the collision and was therefore engaged in “carriage by land” within the meaning of the Workmen’s Compensation act; that plaintiff was an employee of Robert D. Stoafer, who was doing a general truck and transfer business and was likewise engaged in “carriage by land * * * and loading or unloading in connection therewith,” and that at the time of the collision plaintiff was engaged in the performance of his duties in said employment, and that the injury to him, if any, arose out of and in the course of his employment, and his right of recovery, if any, was controlled by the provisions of the Workmen’s Compensation act.
Section 3 of the Workmen’s Compensation act, as amended in 1919, provides: “The provisions of this act hereinafter following shall apply automatically, and without election, * * * to all employers and their employees, engaged in any of the following enterprises or businesses which are declared to be extra-hazardous, namely: * * * 3. Carriage by land or water and loading or unloading in connection therewith, including the distribution of any commodity by horse-drawn or motor-driven vehicle where the employer employs more than three employees in the enterprise or business.” By the amendment of 1919, the clause, “including the distribution of any commodity by horse-drawn or motor-driven vehicle where the employer employs more than three employees in the enterprise or business,” was added to paragraph 3.
Plaintiff contends that the clause, "where the employer employs more than three employees in the enterprise or business,” refers to every enterprise or business included within paragraph 3, while defendant contends that it refers only to a business or enterprise which distributes its own commodity by horse-drawn or motor-driven vehicles. It is clear that the legislature by the amendment of 1919 intended to bring within the terms of the Compensation act additional employers and their employees, and that it did not intend to exclude employers and employees who were already under the act. Before the amendment all employers and their employees engaged in the business of carriage by land were under the act, regardless of the number of employees employed in the business. There does not occur to us any reason why the legislature would declare to be extra-hazardous a transfer business which employs four truck drivers without declaring to be extra-hazardous a transfer business employing three truck drivers. The hazards would not be increased or diminished as far as each driver is concerned. It is clear that the legislature intended to add to the businesses declared to be extra-hazardous those businesses where commodities are distributed by horse-drawn or motor-driven vehicles as an incident to the principal business of the employer, provided more than three employees are employed in the business. This construction accords with the well-recognized rule of statutory construction known as the doctrine of the “last antecedent clause.” This canon of construction is, that relative or qualifying words or phrases are to be applied to the words or phrases immediately preceding, and as not extending to or including other words, phrases or clauses more remote unless such extension or inclusion is clearly required by the intent and meaning of the context or disclosed by an examination of the entire act. (Nebraska State Railway Com. v. Alfalfa Butter Co. (Neb.) 178 N. W. 766; Traverse City v. Blair Township, (Mich.) 157 N. W. 81; Massachusetts General Hospital v. Inhabitants of Belmont, (Mass.) 124 N. E. 21; State v. Centennial Brewing Co. (Mont.) 179 Pac. 296.) It is clear to us that all businesses of carriage by land are automatically brought within the provisions of the Workmen’s Compensation act without regard to the number of employees engaged in the business.
The proof showed without contradiction that plaintiff was employed as the driver of a truck and that his employer was engaged in a general transfer business, which is a business of carriage by land, and it also showed without contradiction that the injury received by plaintiff arose out of and in the course of this employment. It follows, therefore, that plaintiff is bound by the provisions of the Workmen’s Compensation act, and he cannot maintain an action against defendant for damages for personal injuries arising out of his employment if defendant is likewise under the act. (Friebel v. Chicago City Railway Co. 280 Ill. 76.) The pleadings and the evidence now before us show that the defendant was engaged in a business which brought it within the provisions of the act, and in order for plaintiff to maintain his action against it, it was necessary for him to show, under the provisions of section 29 of the Workmen’s Compensation act, that defendant was not bound by the provisions of that act. (Goldsmith v. Payne, 300 Ill. 119.) If the trial court had held, as it should have held, that plaintiff at the time of his injury was employed in a business covered by the act, it would have been proper for the trial court to permit plaintiff to amend his pleadings to allege, and to submit proof to show, that defendant was not bound by the act. We think, therefore, that justice requires that this cause be remanded to the circuit court, so that plaintiff may take such further steps to amend his pleadings and submit his proof as he is advised.
If this cause should be tried again, there are.questions with respect to the admission of evidence which will naturally arise on the new trial, and for that reason those questions will be considered now.
The first error committed by the trial court in this regard was the admission of a copy of an ordinance without proof that the copy was a true copy. The village hall at Odin was destroyed by fire and with it the book containing the original ordinances of the village. What purported to be a typewritten copy of an ordinance of the village regulating the speed of passenger trains was offered in evidence and was admitted on the statement of the village clerk that to the best of his knowledge it was a correct copy. This was not sufficient. Before it is proper to admit the copy it must be established by competent evidence that the copy is a true one.
The most serious error committed by the trial court in the admission of incompetent evidence was the admission of á so-called X-ray film which purported to show the condition of plaintiff’s skull. Dr. M. L. Bradberry, a dentist, identified a film produced in court as one prepared by him and testified that it was an X-ray picture of plaintiff’s skull.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Chief Justice Thompson
delivered the opinion of the court:
Roscoe Stevens, (hereinafter called plaintiff,) by Dollie Stevens, his mother and next friend, brought his action in the circuit court of Marion county against the Illinois Central Railroad Company to recover damages for personal injuries received in a collision between an automobile truck driven by him and a passenger train operated by the servants of defendant at a public crossing near the village of Odin, June 29, 1920. Plaintiff recovered a judgment for $1900, and this judgment was affirmed on appeal to the Appellate Court for the Fourth District. The cause is here by certiorari.
The trial was had upon the declaration filed by plaintiff, which set out in its four counts various grounds for recovery, and special pleas filed by defendant, averring that defendant was doing a general railroad business at the time of the collision and was therefore engaged in “carriage by land” within the meaning of the Workmen’s Compensation act; that plaintiff was an employee of Robert D. Stoafer, who was doing a general truck and transfer business and was likewise engaged in “carriage by land * * * and loading or unloading in connection therewith,” and that at the time of the collision plaintiff was engaged in the performance of his duties in said employment, and that the injury to him, if any, arose out of and in the course of his employment, and his right of recovery, if any, was controlled by the provisions of the Workmen’s Compensation act.
Section 3 of the Workmen’s Compensation act, as amended in 1919, provides: “The provisions of this act hereinafter following shall apply automatically, and without election, * * * to all employers and their employees, engaged in any of the following enterprises or businesses which are declared to be extra-hazardous, namely: * * * 3. Carriage by land or water and loading or unloading in connection therewith, including the distribution of any commodity by horse-drawn or motor-driven vehicle where the employer employs more than three employees in the enterprise or business.” By the amendment of 1919, the clause, “including the distribution of any commodity by horse-drawn or motor-driven vehicle where the employer employs more than three employees in the enterprise or business,” was added to paragraph 3.
Plaintiff contends that the clause, "where the employer employs more than three employees in the enterprise or business,” refers to every enterprise or business included within paragraph 3, while defendant contends that it refers only to a business or enterprise which distributes its own commodity by horse-drawn or motor-driven vehicles. It is clear that the legislature by the amendment of 1919 intended to bring within the terms of the Compensation act additional employers and their employees, and that it did not intend to exclude employers and employees who were already under the act. Before the amendment all employers and their employees engaged in the business of carriage by land were under the act, regardless of the number of employees employed in the business. There does not occur to us any reason why the legislature would declare to be extra-hazardous a transfer business which employs four truck drivers without declaring to be extra-hazardous a transfer business employing three truck drivers. The hazards would not be increased or diminished as far as each driver is concerned. It is clear that the legislature intended to add to the businesses declared to be extra-hazardous those businesses where commodities are distributed by horse-drawn or motor-driven vehicles as an incident to the principal business of the employer, provided more than three employees are employed in the business. This construction accords with the well-recognized rule of statutory construction known as the doctrine of the “last antecedent clause.” This canon of construction is, that relative or qualifying words or phrases are to be applied to the words or phrases immediately preceding, and as not extending to or including other words, phrases or clauses more remote unless such extension or inclusion is clearly required by the intent and meaning of the context or disclosed by an examination of the entire act. (Nebraska State Railway Com. v. Alfalfa Butter Co. (Neb.) 178 N. W. 766; Traverse City v. Blair Township, (Mich.) 157 N. W. 81; Massachusetts General Hospital v. Inhabitants of Belmont, (Mass.) 124 N. E. 21; State v. Centennial Brewing Co. (Mont.) 179 Pac. 296.) It is clear to us that all businesses of carriage by land are automatically brought within the provisions of the Workmen’s Compensation act without regard to the number of employees engaged in the business.
The proof showed without contradiction that plaintiff was employed as the driver of a truck and that his employer was engaged in a general transfer business, which is a business of carriage by land, and it also showed without contradiction that the injury received by plaintiff arose out of and in the course of this employment. It follows, therefore, that plaintiff is bound by the provisions of the Workmen’s Compensation act, and he cannot maintain an action against defendant for damages for personal injuries arising out of his employment if defendant is likewise under the act. (Friebel v. Chicago City Railway Co. 280 Ill. 76.) The pleadings and the evidence now before us show that the defendant was engaged in a business which brought it within the provisions of the act, and in order for plaintiff to maintain his action against it, it was necessary for him to show, under the provisions of section 29 of the Workmen’s Compensation act, that defendant was not bound by the provisions of that act. (Goldsmith v. Payne, 300 Ill. 119.) If the trial court had held, as it should have held, that plaintiff at the time of his injury was employed in a business covered by the act, it would have been proper for the trial court to permit plaintiff to amend his pleadings to allege, and to submit proof to show, that defendant was not bound by the act. We think, therefore, that justice requires that this cause be remanded to the circuit court, so that plaintiff may take such further steps to amend his pleadings and submit his proof as he is advised.
If this cause should be tried again, there are.questions with respect to the admission of evidence which will naturally arise on the new trial, and for that reason those questions will be considered now.
The first error committed by the trial court in this regard was the admission of a copy of an ordinance without proof that the copy was a true copy. The village hall at Odin was destroyed by fire and with it the book containing the original ordinances of the village. What purported to be a typewritten copy of an ordinance of the village regulating the speed of passenger trains was offered in evidence and was admitted on the statement of the village clerk that to the best of his knowledge it was a correct copy. This was not sufficient. Before it is proper to admit the copy it must be established by competent evidence that the copy is a true one.
The most serious error committed by the trial court in the admission of incompetent evidence was the admission of á so-called X-ray film which purported to show the condition of plaintiff’s skull. Dr. M. L. Bradberry, a dentist, identified a film produced in court as one prepared by him and testified that it was an X-ray picture of plaintiff’s skull. Although a skiagraph produced by X-rays cannot be verified as a true representation of the subject in the same way as a picture made by a camera, the rule in regard to the use of ordinary photographs on the trial of a cause applies to skiagraphs of the internal structure and condition of the human body taken by the aid of X-rays, and such a skiagraph, when verified by proof that it is a true representation, is admissible in evidence. Like other photographs, they cannot, be received as evidence until proper proof of their correctness and accuracy is produced. (Chicago City Railway Co. v. Smith, 226 Ill. 178; Chicago and Joliet Electric Railway Co. v. Spence, 213 id. 220.) It must be established by competent evidence that the picture correctly portrays the condition it purports to represent before it has any place in the case. Some witness must be able to testify that the picture offered in evidence shows accurately what the witness saw when he looked into the body with the fluoroscope, or he must be able to say that he is skilled in the use of the X-ray machine and in taking and developing X-ray pictures, and that he took the picture offered in evidence with the body in a certain position, (describing it,) with a machine which he knew to be in good working condition and accurate, and that from his experience he was able to say that the picture produced by the machine was an accurate picture of the internal condition of the body. These methods of establishing the accuracy of the picture are not exclusive, but whatever method is used, its accuracy must be established before it is admitted. (Ligon v. Allen, 157 Ky. 101, 162 S. W. 536, 51 L. R. A. (N. S.) 842, note p. 858.) Applying these well established rules to the facts in this case, it is apparent that plaintiff failed to establish the preliminary requirements necessary to make the X-ray film admissible. The doctor did not state that he saw the condition of plaintiff’s skull nor that the film correctly represented this condition. Nor did he state how the film was taken, nor that he had ever had any previous experience whatever with an X-ray machine, nor that he had ever made an X-ray photograph, nor that he knew anything about how they ought to be made, nor that the X-ray machine used by him was accurate, nor that it was in working condition at the time the exposure was made, nor whether he had ever checked a picture made by his machine with a condition seen by his eye with the use of the fluoroscope, to determine whether-the machine accurately portrayed the internal condition of the part of the body under investigation.
The error of admitting this film and the photograph printed from it was aggravated by permitting two physicians to examine the film and the photograph and then say what diseases and disabilities might possibly result to plaintiff from the injury to his skull which the X-ray film purported to show. They testified that he might possibly have an abscess of the brain, that there might be an adhesion of the brain to the dura and a consequent lessening of the calibre of the skull, and that epilepsy might result. They were permitted to say further that these things might result in his death. It has been repeatedly held by this court that a mere possibility that future pain or suffering may be caused by an injury or that some disability may result therefrom is not sufficient to warrant an assessment of damages. Mere surmise or conjecture cannot be regarded as proof of an existing fact or of a future condition that will result. Expert witnesses can only testify or give their opinion as to future consequences that are shown to be reasonably certain to follow. Amann v. Chicago Consolidated Traction Co. 243 Ill. 263; Lauth v. Chicago Union Traction Co. 244 id. 244; Fellows-Kimbrough v. Chicago City Railway Co. 272 id. 71.
Other errors complained of are not likely to occur on a new trial and we do not consider it necessary to discuss them.
The judgments of the circuit and Appellate Courts are reversed and the cause is remanded to the circuit court of Marion county. „ , , , , Reversed and remanded.